******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In re Complaint of ) ) Maranatha Broadcasting Company, Inc.) CSR 4897-M against C-TEC Cable Systems ) ) Request for Carriage of WFMZ-TV, ) Allentown, Pennsylvania ) MEMORANDUM OPINION AND ORDER Adopted: May 6, 1997 Released: May 15, 1997 By the Chief, Consumer Protection and Competition Division, Cable Services Bureau: I. Introduction 1. Maranatha Broadcasting Company, Inc. ("MBC"), licensee of independent television broadcast station WFMZ-TV, Channel 69, Allentown, Pennsylvania, filed a complaint pursuant to Section 76.61(a)(3) of the Commission's rules, claiming that C-TEC Cable Systems ("C-TEC"), a cable operator serving 38 communities in New Jersey ("Communities"), has unlawfully refused to carry the signal of WFMZ-TV on C-TEC's cable television system in violation of Section 76.56(b)(2) of the Commission's rules. ComVideo Systems, Inc., d/b/a C-TEC Cable Systems and Home Link Communications of Princeton, L.P., d/b/a C-TEC Cable Systems opposed the petition and MBC replied. II. Summary of Pleadings 2. In support of its complaint, MBC states that it requested carriage of WFMZ-TV on C-TEC's cable system on September 30, 1996, pursuant to Section 76.61(a) of the Commission's rules. MBC states that C-TEC did not respond to its request within 30 days, as required by Section 76.61(a)(2) of the rules. According to MBC, C-TEC has therefore denied its request for carriage and MBC is filing this complaint within 60 days pursuant to Section 76.7(b)(4)(iii)(A) of the rules. MBC argues that there is no reason why WFMZ-TV should not be entitled to carriage on C-TEC's cable systems. MBC contends that WFMZ-TV is a local commercial television station in the same market as C-TEC's cable systems; additional copyright license fees will not be incurred by C-TEC for carriage of WFMZ-TV; fewer than one-third of the activated channels on the system are utilized for carriage of local commercial television signals; MBC has not relinquished its right to claim carriage under the must carry rules; and MBC states that its complaint is timely filed. MBC also argues that carriage cannot be denied by C-TEC even if WFMZ-TV did not provide, by direct, off-air reception, a -45 dBm or better signal at the respective cable system principal headends because MBC has agreed to be responsible for the costs of delivering a good quality signal or a baseband video signal. 3. In opposition, C-TEC argues that it has no record of ever having received WFMZ- TV's must carry election which MBC states was sent on September 30, 1996. C-TEC also notes that the letter was not attached to the service copy of the complaint that it received. C-TEC also argues that MBC did not notify C-TEC prior to submitting its complaint, as required by Section 76.61(a)(1) and Section 614(d)(1) of the Communications Act of 1934, as amended. According to C-TEC, it first became aware of MBC's desire for carriage when it received a copy of MBC's December 30, 1996 complaint. Finally, C-TEC argues that MBC does not have any right to request must carry status for 29 of the 31 communities identified in its complaint because WFMZ-TV is located in a different 1992 Area of Dominant Influence ("ADI") from those 29 communities. (MBC lists 38 communities in the caption of its complaint). C-TEC notes that it does not have separate franchise agreements with many of the communities listed in the caption of MBC's complaint. Instead, C- TEC states that these communities are part of larger franchised municipalities. According to the list provided by C-TEC, 29 of the 31 New Jersey communities listed are located in the New York, New York 1992 ADI. According to C-TEC, only Princeton Borough and Princeton Township are located in the Philadelphia, Pennsylvania ADI where WFMZ-TV would arguably have must carry rights. 4. In reply, MBC states that assuming the accuracy of C-TEC's representation, that of all of the communities listed in its complaint, only Princeton Borough and Princeton Township are located in the Philadelphia ADI, it withdraws its request to seek must carry status outside of the Philadelphia television market. With regard to C-TEC's claim that it never properly served MBC's initial carriage request, MBS acknowledges that the service copy of MBC's complaint did not include the attachments in dispute; however, MBC notes that its carriage request was mailed on September 30, 1996, Certified Mail-Return Receipt Requested and was delivered and signed for by C-TEC on October 2, 1996. Finally, MBC states that it seeks only the opportunity to work cooperatively with C-TEC and to deliver from WFMZ-TV a good quality signal, through specialized equipment provided at its own expense, to Princeton Borough and Princeton Township. DISCUSSION 5. We will grant MBC's petition with respect to the communities of Princeton Borough and Princeton Township. According to Section 76.55 of the Commission's Rules, commercial television broadcast stations, such as WFMZ-TV, are entitled to carriage on cable systems located in the same Area of Dominant Influence (or "ADI"). It is now undisputed between the parties that only Princeton Borough and Princeton Township are located in the Philadelphia ADI. 6. The 1992 Cable Actprovides that a cable operator is not required to carry a local commercial television station that does not deliver a good quality signal to the principal headend of a cable system. Because the cable operator is in the best position to know whether a given station is providing a good quality signal to the system's principal headend, we believe that the initial burden of demonstrating the lack of a good quality signal appropriately falls on the cable operator. In meeting this burden, the cable operator must show that it has used good engineering practices to measure the signal delivered to the headend. With respect to the standard to be used to determine what constitutes a good quality signal, the 1992 Cable Act adopted a standard for determining the availability of VHF and UHF commercial stations at a cable system's headend: for VHF commercial television stations the standard is -49 dBm; for UHF commercial television stations the standard is -45 dBm. 7. In this instance, C-TEC has made no showing with regard to WFMZ-TV's signal. Moreover, MBC has stated that even if, arguably, WFMZ-TV did not provide, by direct, off-air reception, a -45 dBm or better signal at the respective cable system headends, MBC would accept the responsibility for the costs associated with delivering a good quality signal. Because MBC has promised to supply, at its expense, all of the equipment necessary for delivery of a good quality signal to C-TEC's cable system's principal headends, we believe that MBC has meet its burden under the rules. We therefore find that WFMZ-TV is a qualified UHF station that is entitled to carriage on C-TEC's cable system. ORDERING CLAUSES 8. Accordingly, IT IS ORDERED that the petition filed by Maranatha Broadcasting Company, Inc. IS GRANTED with respect to the communities of Princeton Borough and Princeton Township and IS DENIED with respect to all other captioned communities, pursuant to Section 614 of the Communications Act of 1934, as amended (4 U.S.C. 534), and C-TEC Cable Systems IS ORDERED to commence carriage of Station WFMZ-TV within sixty (60) days of the release date of this Order. 9. This action is taken pursuant to authority delegated by 0.321 of the Commission's Rules. FEDERAL COMMUNICATIONS COMMISSION Gary M. Laden, Chief Consumer Protection and Competition Division Cable Services Bureau